FCC Expands Anti-Spoofing Rules

The FCC unanimously adopted revised anti-spoofing rules,
implementing part of the RAY BAUM's Act, at its August meeting.
As we anticipated in
last month's TCPA Digest, the Second Report and Order ("Second
R&O") extends the FCC's Truth in Caller ID rules to
encompass malicious spoofing activities originating outside the
U.S. that are directed at consumers within the U.S. It also expands
the scope of communications covered by the Truth in Caller ID rules
beyond telecommunications services and interconnected voice over
Internet Protocol ("VoIP") services to include text
messaging and alternative voice services, such as one-way VoIP
services.

The Second R&O was generally unopposed by stakeholders. The
only concern raised in the record related to the addition of Common
Short Codes to the definition of "text message" in the
Second R&O. Those opposed to the change argued that there is no
evidence that Common Short Codes can be spoofed, there was
insufficient notice of the change under the Administrative
Procedure Act, and there is no reference to short codes in the RAY
BAUM's Act. The FCC rejected these arguments.

In his statement, Commissioner Michael O'Rielly said that
while he was sympathetic to these arguments, he supported the new
wording because the modified definition of text messaging was
limited to the Truth in Caller ID context. He also said that he
believed that the expanded extraterritorial jurisdiction will be
difficult to implement in practice in uncooperative nations.
Commissioner Jessica Rosenworcel said the agency must do more to
fight illegal and unwanted robocalls. Commissioner Geoffrey Starks
welcomed the FCC Enforcement Bureau's increased authority to
target illegal robocalls arising outside the U.S.

At the July 24 deadline, the FCC received nearly fifty comments
from stakeholders in response to its Declaratory Ruling and Third Further Notice of
Proposed Rulemaking on default opt-out call blocking. In the
Declaratory Ruling, detailed in our
June TCPA Digest, the FCC clarified that voice service
providers may offer call blocking to their customers on a default
opt-out basis, and sought comment on the establishment of a safe
harbor from liability for voice service providers that block calls
for which Caller ID authentication shows the call was spoofed. The
Commission found that the need to opt-in to various call-blocking
and labelling programs reduced adoption rates, leaving many
consumers without protection from unwanted robocalls. The Further
Notice also proposed the creation of a Critical Calls List to
ensure that emergency calls are not blocked, and contemplated
mandating implementation of the SHAKEN/STIR framework by the end of
this year.

The comments reflected a diverse set of views. Large voice
service providers generally argued that a broad safe harbor, which
would be based not just on SHAKEN/STIR attestation, but also on
reasonable analytics, will help incentivize providers to implement
opt-out call blocking to better protect consumers. Smaller and
rural voice service providers, as well as calling party interests,
argued that SHAKEN/STIR attestation was not yet deployed widely
enough to serve as the basis for a safe harbor, and the FCC should
not create a safe harbor for blocking calls that fail SHAKEN/STIR
until it is deployed industry-wide – which could take several
years. Some also argued that any safe harbor adopted by the
Commission should require a strong and mandatory process that
allows for a rapid redress of legitimate calls that are
inadvertently blocked. Calling parties also expressed concern that
the reasonable analytics deployed by voice service providers could
block many legitimate and wanted calls due to their call patterns,
such as many short calls in quick succession.

Most commenters supported the creation of some sort of Critical
Calls List to protect emergency communications and generally
believed it should be centrally maintained by the FCC. Some raised
security concerns, noting that if the list were public, bad actors
could spoof the numbers on the list. Parties disagreed, however, on
whether the list should include a narrower subset of emergency
numbers such as Public Safety Answering Points and other government
entities, or a broader constituency of "wanted"
callers.

Reply comments are due August 23.

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guide to the subject matter. Specialist advice should be sought
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